Rajasthan High Court - Jodhpur

Ghanshyam @ Bharat Singh vs State Of Rajasthan ... on 26 April, 2023

Bench: Farjand Ali

[2023/RJJD/012040]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 1606/2023

Ghanshyam @ Bharat Singh S/o Himmat Singh, Aged About 24 Years, R/o Bhomiya Ka Badiya, Police Station Kareda, District Bhilwara (Rajasthan) (At Present Lodged At Sub Jail, Sojat, District Pali)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Divakar Sharma For Respondent(s) : Mr. Javed Gauri, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

26/04/2023

1. The instant bail application has been filed by the petitioner

Ghanshyam @ Bharat Singh S/o Himmat Singh under Section 439

Cr.P.C against the order impugned dated passed by learned court

below in connection with FIR No.55/2021 registered at Police

Station Shivpura, District Pali for the offences under Sections 8/15

of NDPS Act.

2. Learned counsel for the petitioner submits that a false case

has been foisted against the petitioner. He has nothing to do with

the alleged offences and no useful purpose would be served by

keeping him behind the bars. It is the admitted case of the

prosecution that neither the petitioner was found present at the

crime scene nor any incriminating material or contraband was

recovered from his possession. He has been made accused on the

strength of confessional statement allegedly made by him during

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police custody which is otherwise not admissible in evidence by

virtue of Sections 25 and 26 of Indian Evidence Act. The said

disclosure statement does not come within the ambit of Section 27

of Indian Evidence Act. He submits that for booking an accused for

the accusation of the offence committed under Section 29 of the

NDPS Act, there must be some corroborative evidence. Since

nothing is there on record from which involvement of the accused

can be presumed, therefore, the embargo under Section 37 of the

NDPS Act do not come in way of releasing the petitioner on bail.

3. Per contra, learned Public Prosecutor opposed the bail

application on the ground that contraband poppy husk weighing

228.400 Kilograms was recovered. The recovered contraband

poppy husk is way above the demarcated commercial quantity and

therefore, in view of the bar contained under Section 37 of NDPS

Act, no case of bail is made out.

4. Heard. Perused the material available on record.

5. It is an admitted fact of the case that when the vehicle was

intercepted no one was present on the spot and an FIR was lodged

against unknown persons. During Investigation, it was found that

registration number displayed on the vehicle was fake, however on

the strength of engine number and chassis number the name of

the true owner was found to be Natural Resources Pvt. Ltd. It is

said that he convinced the I.O. that his vehicle was stolen from

Beawar for which a case bearing no. 476 was registered on

06.08.2020 at Beawar city Police Station.

6. The petitioner was made accused in the above mentioned

case on account of his alleged disclosure made in an another case

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no. 166/21 and thus, the agency concluded that he was involved

in the instant matter pertaining to transfer of contraband poppy

husk. There is no direct or indirect evidence whatsoever to

connect the present petitioner with the alleged recovery of

contraband except the fact that he made a disclosure statement in

an another case admitting his culpability. This court is of the view

that at least there must be some corroborations or support to

verify the confession made by the principal accused to the Police

Officer while in lockup. If it is an information under Section 27 of

the Evidence Act, something is required to be recovered or

discovered in pursuance of the information supplied under Section

27 of the Evidence Act which distinctly relates to the commission

of the crime. It is the admitted case of prosecution that in

pursuance of the information furnished under Section 27 of the

Evidence Act regarding the culpability of the petitioner, nothing

new was disclosed, recovered or discovered.

7. In this regard, we may refer to Sangappa Basalingappa

Rabasetty Versus State of Karnataka reported in Criminal

Appeal No.37/1982 where in it was held as under:-

"The confessions made to the police are irrelevant and inadmissible in evidence under Sections 24, 25 and 26 of the Evidence Act. Section 27 makes a departure from the principle laid down in Sections 24 and 26 of the Evidence Act. When the information contained in the statements (whether amounting to a confession or not)made by an accused person in police custody is confirmed by the finding of some object or fact, the danger disappears; for the discovery of the stolen goods, the instrument of crime, the dead body, the

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clothes which the deceased was wearing or any other material thing, which are capable of being perceived by the senses demonstrates conclusively that these portions at least of the confession cannot have been false. In such a case so much of the information given by the accused as relates distinctly to the fact thereby discovered becomes relevant under Section 27. The Section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence. It can be seen that simply discovery of fact as a result of information from accused does not make it admissible unless its relevancy is established by other evidence showing the connection between the fact discovered and the offence charged and the accused. Section 27 involves the principle of confirmation by subsequent facts. There appears to be a distinction between a statement that "it is lying hid or buried at a certain place" and "I hid or buried it at a certain place". For instance, in the case of a dead body, a statement of the latter kind involves a confession of concealing evidence or conniving at such being done; or the statement" I stole and buried or concealed" or "the stolen property was hid at a certain place" includes a confession of theft and it might also be hit by Sections 25 or 26. In the application of the rule it should never be lost sight of that part of a statement wherein the accused admits his guilt in regard to an offence is inadmissible as it does not in any sense relate distinctly to the discovery of any fact."

8. A simple reading of Section 27 of the Evidence Act and

landmark judgments show that the part of information in the form

of confession received from disclosure made by an accused in

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isolation cannot be taken as reliable piece of evidence until there

is a discovery or recovery of another fact to corroborate and prove

the veracity of the said information.

9. As far as the question of fetter contained under Section 37 of

NDPS Act is concerned this court is aptly guided by a recent ruling

titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) in

Special Leave Petition (CRL.) NO(S). 915 of 2023 order dated

28.03.2023, Hon'ble the Supreme Court has discussed Section 37

of the NDPS Act in detail and has allowed the accused in that

matter to be released on bail while holding that the impediment

contained under Section 37 is not a bar to grant of bail in cases

where there is undue delay in conclusion of trial. The paragraph of

the afore-said judgment relevant to the present matter is

reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release,

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they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws

- be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."

10. Having regard to the totality of facts and circumstances as

available on record and upon a consideration of the arguments

advanced, at this stage of infancy of trial, this Court refrains from

passing any comments over the admissibility of evidence and the

quality of evidence yet it is of the firm opinion that the appellant

deserves to be enlarged on bail in this case.

11. Accordingly, the second bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

Ghanshyam @ Bharat Singh S/o Himmat Singh shall be enlarged

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on bail provided he furnishes a personal bond in the sum of

Rs.50,000/- with two sureties of Rs.25,000/- each to the